Ard v. Catoe

Chief Justice TOAL:

I respectfully dissent. I would reverse the decision of the PCR court. In my opinion, Ard’s trial counsel adequately investigated the issue of gunshot residue- on the victim’s hands and their failure to cross-examine the State’s gunshot residue expert was neither deficient nor prejudicial to Ard.

In order to establish a claim of ineffective assistance of counsel, a PCR applicant must show (1) the performance of counsel was deficient and, (2) but for the errors of counsel, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). According to the majority, Ard’s two trial counsel *337were deficient in failing to pursue the State’s gunshot residue expert witness vigorously enough with respect to his conclusion that the victim had no gunshot residue on her hands. The majority also finds Ard’s counsel failed to adequately perform their own investigation into the gunshot residue results. The facts, in my opinion, are to the contrary.

In preparation for trial, Ard’s counsel did, in fact, hire their own gunshot residue expert to review the gunshot residue test results furnished by the State. Counsel did not ultimately produce this expert as a witness at trial because, upon review of the test results, the expert then indicated to trial counsel that he concurred with the State’s expert’s conclusion. Instead, at trial, the State called the expert originally obtained by Ard to testify that he had agreed with the State’s own expert’s findings. In my opinion, Ard’s trial counsel appropriately countered this testimony with a cross-examination which called into question the accuracy of the gunshot residue test results. Specifically, counsel elicited testimony from the expert suggesting that the process of fingerprinting the victim would have “interfered” with the gunshot residue test results if done prior to trace evidence collection. Simply stated, Ard’s trial counsel sufficiently dealt with the adverse evidence. The fact that Ard’s counsel could not force their own qualified expert to tailor his opinion to fit their theory of the case, in my view, is an insufficient basis on which to conclude that these counsel were deficient.

The majority bases its conclusion in part on the PCR court’s finding that the expert retained by Ard’s counsel was not “independent” because of his prior involvement with the gunshot residue analysis during his employment with SLED. In my opinion, this is rank speculation, not supported by any evidence of bias in the record. Without more, this assumption does not support the majority’s conclusion that selection of this expert by counsel was unreasonable.

Moreover, in the face of unfavorable gunshot residue results, counsel for Ard independently investigated the facts and circumstances of the case by performing their own thorough investigation of the crime scene and hiring experts in both engineering and crime scene investigation in order to corroborate Ard’s account of the gun’s accidental discharge. Counsel *338also developed their theory on the accuracy of the gunshot residue results by interviewing three witnesses regarding the handling of the victim’s body at the scene. In light of these independent investigations, the fact that counsel did not conduct pre-trial questioning of the State’s expert on the results of the gunshot residue analysis, in my opinion, does not fall below an objective standard of reasonableness. See Simpson v. Moore, 367 S.C. 587, 627 S.E.2d 701 (2006) (“A decision ‘not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.’ ”)

Additionally, the record shows a thorough factual explanation by the State’s expert who testified that there were not enough indicator particles to conclude there was gunshot residue on the victim’s hand. Again, in my view the fact that Ard’s trial counsel could not force the State’s gunshot residue expert to change his opinion is an insufficient basis on which to conclude that these counsel were deficient. Moreover, the fact that eight years later, PCR counsel were finally able to retain an expert who reached a conclusion favorable to Ard’s case (i.e. that the victim’s hands contained traces of gunshot residue) does not imply that trial counsel were deficient for failing to find such an expert at the time of the trial.18 To hold otherwise declares open season on the criminal justice system by giving a “second chance” to any convicted criminal who is patient enough to seek out an “expert” who will one day provide him with the opinion testimony he desires.19

*339Furthermore, even if these trial counsel were deficient, Ard failed to demonstrate that the deficiency prejudiced his case. The State presented twenty witnesses to show that Ard killed the victim with malice. Although the State emphasized the lack of gunshot residue in its closing argument, in my opinion, the State presented other overwhelming evidence from which a jury could find Ard guilty of murder.

Although not addressed by the majority because of their findings on ineffectiveness of trial counsel, Ard also claimed that appellate counsel was ineffective for failing to directly appeal the dismissal of a juror during the sentencing phase. The juror’s qualifications came under scrutiny after the second day of the sentencing phase when the juror’s wife approached the trial judge complaining that her husband’s jury duty was causing hardship for the family because of his inability to work. The juror’s wife also commented that her husband’s religious beliefs would not permit him to vote for the death penalty. When asked by the trial court during an in camera conference about his ability to be a fair juror, the juror responded that although he believed he could render a fair verdict under normal circumstances, the fact that his wife had raised doubts in the parties’ minds as to his ability to be fair made him feel “targeted” regardless of his ultimate decision. When further questioned about his ability to vote for the death penalty, the juror stated, “I don’t think I can be fair at *340this point.” Despite multiple reassurances from the court that this matter would remain private and that the juror would not be accountable to anyone for his vote, the juror reiterated his concerns that his decision “would be a threat” to him and concluded that he could no longer cast a fair vote. The trial court released him from the jury.

In my view, Ard did not show that the failure of appellate counsel to directly appeal the dismissal of the juror amounted to ineffective assistance of counsel. In a PCR proceeding, the burden is on the applicant to prove the allegations in his application. Patrick v. State, 349 S.C. 203, 207, 562 S.E.2d 609, 611 (2002). Although Ard supported his argument that counsel was deficient with testimony from appellate counsel acknowledging that he erred in not raising the juror’s dismissal on appeal, Ard did not satisfy his burden of proof with a showing of how the juror’s dismissal prejudiced his case. In my view, there was nothing prejudicial about the dismissal of a juror who stated that he would feel “targeted” as to his decision and ultimately admitted that he did not believe he could cast a fair vote. Therefore, in my opinion, the PCR court incorrectly determined that the failure to directly appeal the trial court’s dismissal of a juror amounted to ineffective assistance of counsel.

For the foregoing reasons, I would hold that the actions of neither trial counsel nor appellate counsel resulted in prejudice against Ard. Accordingly, I would reverse the PCR court’s finding of ineffective assistance of counsel based on the failure of trial counsel to adequately investigate and challenge the gunshot residue. I would also reverse the PCR court’s finding of ineffective assistance of counsel based on the failure of appellate counsel to raise the issue of the trial court’s dismissal of a juror on direct appeal.

BURNETT, J., concurs.

. The record shows that trial counsel received the State’s gunshot residue results on February 2, 1996, and the underlying raw data on March 1, 1996. The majority implies that the time between February 2, 1996, and April 15, 1996, when the trial was scheduled to begin, was insufficient for trial counsel to retain a qualified gunshot residue expert. However, those in the legal profession are well aware that trial preparation does not occur in a perfect world. In my view, we must presume Ard's trial counsel operated appropriately and expeditiously in retaining their expert because there is no evidence that the expert, a former supervisor in SLED’s trace evidence department, was biased or otherwise unqualified to perform an accurate evaluation of the State’s results on such "short notice.”

. Additionally, I note that in support of their conclusion that trial counsel were deficient, the majority cites extensively to American Bar Association (ABA) guidelines on the prevailing norms of practice. The majority justifies their reliance on ABA guidelines by pointing to an *339endorsement of ABA standards in Strickland v. Washington. In my opinion, however, the Strickland court makes it clear that the ABA standards, although helpful, are "only guides” for assessing reasonableness. 466 U.S. at 688, 104 S.Ct. 2052. In fact, the Strickland court cautions:

No particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions.

Strickland, 466 U.S. at 688-89, 104 S.Ct. 2052. This Court has never adopted the ABA guidelines as the standard for prevailing professional norms in South Carolina. Therefore, in my view, “reasonableness” in the instant case is best assessed in the broader context suggested by Strickland.